States Move to Protect Anesthetized Women from Non-Consensual Pelvic Exams

Performing pelvic exams on anesthetized women without consent is legal in forty states.

Performing pelvic exams on anesthetized women without consent is legal in forty states. Shutterstock

 

Connecting state and local government leaders

The controversial practice is condemned by major medical organizations, but still legal in most states.

When going in for surgery, most women don’t expect that they might be subjected to a pelvic exam under anesthesia—especially one to which they didn’t consent. Yet the stories of this happening—sometimes during gynecological surgeries and sometimes during completely unrelated ones—are common.

Performing pelvic exams on anesthetized women without prior consent is legal in forty states. Now, state lawmakers across the country are taking up the issue. 

Maine State Rep. Vicki Doudera, who introduced a bill for this session that would require informed consent for all pelvic examinations performed under anesthesia, said that the more she read about women’s experiences, the more she saw the need to change the law. “It’s traumatic to find out this happened to you and you didn’t know it,” she said. “It’s an antiquated procedure and it shouldn’t happen.”

Since January of 2019, more than 20 other similar bills were introduced across the country. Ten states have already made the practice illegal, four of them in the past year. Robin Fretwell Wilson, a University of Illinois law professor who has tracked the progress of pelvic exam bills for over two decades, said that state laws banning doctors or medical students from performing an exam without a woman’s consent have now “hit the trifecta” of New York, California, and Illinois. “They’re watersheds,” Wilson said. “Now that it’s passed in those states, we’ll find that it spreads more quickly.”

Wilson said that the issue was first brought to her attention when she was working on a South Carolina state ethics committee. A medical student told the group that she was being asked to perform pelvic examinations on unconscious women during surgery, despite the fact that they had not consented to them. 

Pelvic exams during surgeries have been used as a teaching tool for medical students for decades. Usually, the exams are related to the surgery and are done prior to cutting to check the placement of the uterus once a woman’s muscles have relaxed under anesthesia, said Kayte Spector-Bagdady, a bioethicist at the University of Michigan Medical School and the co-author of a paper reviewing consent for pelvic examinations under anesthesia. 

“There’s a really important distinction between when students perform a pelvic exam for educational purposes when the patient is getting a related procedure and when students perform them to check a box for their medical education during an unrelated procedure,” Spector-Bagdady said. “No one is thinking about a pelvic exam when they’re going in for an appendectomy. That is extraordinarily problematic.”

In the early 2000s, two small-scale studies found that it was a common practice for medical students to perform pelvic exams when a patient was under anesthesia. A survey of 400 medical students from five schools in Philadelphia found that 90% of them had performed a pelvic exam on an unconscious woman, although they weren’t sure how many women had consented to the procedure. A later study at the University of Oklahoma found that a large majority of medical students there had performed pelvic exams on gynecological surgery patients, and that nearly 75% of these women had not consented to the exam.

The Federal Trade Commission held a hearing on pelvic exams under anesthesia in 2003, at which Wilson testified. But since then the issue has not gotten much traction on the federal level. Major medical associations like the American College of Obstetricians and Gynecologists and the American Medical Association took notice, however, and condemned the practice.

The Association of American Medical Colleges adopted their stance two days after the FTC hearing, writing that “performing pelvic examinations on women under anesthesia, without their knowledge or approval … is unethical and unacceptable.” 

Wilson said that the disapproval from medication organizations isn’t enough. “An ethics statement without teeth hasn’t been changing behavior because nobody is policing this,” she said. “This is a clear place where the law is going to change norms.”

Some of the bills introduced in state legislatures have been opposed by the medical community. When a bill came up in Connecticut in 2019, Yale Medical School cautioned lawmakers against intervening in the clinical decisions of physicians. “The legislative process is imperfect and can have unintended effects, such as impeding the delivery of the best care in an emergency situation,” reads a statement from the school. “Instead, we recommend that the Committee rely upon medical societies to establish evidence-based, well vetted standards for obtaining consent.” The Connecticut bill died in committee.

In Maine, Doudera said she has not faced any pushback. Representatives from the Maine Nurse Practitioner Society, the Maine Medical Association, Planned Parenthood, the ACLU of Maine, and the Maine Coalition Against Sexual Assault all testified in support of the bill at its committee hearing in January. Doudera said she was “thrilled” that a medical student came to testify as well.

“I think that physicians, nurses, students, patients—we all want to be on the right side of this,” Doudera said.

Her measure requires an anesthetized patient to agree to a pelvic exam ahead of time unless the examination is “required for diagnostic purposes and is medically necessary.” 

Most bills require explicit informed consent for a pelvic exam, but some, like one signed into law in Utah in 2019, also stipulate that there must be a separate consent form for a pelvic exam that  has the words “CONSENT FOR EXAMINATION OF THE PELVIC REGION” in no smaller than 18-point font. Other proposals have sought to require the exam be related to the planned procedure, meaning they could only be performed during gynecologic surgery. Doudera said the bill in Maine may expand to include rectal and prostate exams as well. 

New York’s law, which will go into effect on April 4, does something novel by adding a stipulation that performing a pelvic exam under anesthesia without consent, or supervising a medical student who conducts one, is an act of professional misconduct. Prior laws, like one passed in Virginia in 2007, targeted medical students, not their supervising physicians. “New York made it very personal for physicians,” Wilson said. “Now their license is at stake.”

Spector-Bagdady said that the bills in some states have likely gone beyond what lawmakers actually intended to legislate. She pointed to one in Florida that would define pelvic exams as procedures that “require contact with a patient's sexual organs,” a definition that isn’t medically accurate. “No medical professional would say that contact with genitals constitutes a pelvic exam,” she said. “This definition would now regulate things like catheter placement. It makes things overly confusing for patients and I’m not sure it’s what the legislators intended.”

Informed consent for pelvic exams performed under anesthesia by medical students should have four basic factors, Spector-Bagdady said. There should be explicit consent, the examination should be related to the surgical procedure, the student should meet the patient prior to surgery, and the examination should take place under the direct supervision of an educator. “None of the state laws talk about the third or fourth prong,” she said. But if they did, they could “protect patients and give students the best educational opportunities.” 

Editor's Note: This story was updated after publication to correct where Robin Fretwell Wilson served on a statewide ethics committee. It was in South Carolina, not Illinois.

Emma Coleman is the assistant editor for Route Fifty.

NEXT STORY: Why Home Health Care Is Suddenly Harder To Come By For Medicare Patients